Most couples don’t think about “collaborating” when it comes to their divorce. But a modern trend in family law is for spouses to choose a collaborative process in order to complete their divorce and resolve all their divorce-related issues, instead of going to court and asking a judge to decide. Unlike a traditional divorce, which is often contentious, collaborative law focuses on reaching solutions through communication and cooperation.
If you and your spouse can’t communicate, or if there’s a history of substance abuse or domestic violence, collaborative law probably isn’t for you. But if you're willing to talk through the essential divorce-related issues, like child custody, property division, and spousal support, collaborative divorce might be less expensive and take less time than traditional divorce proceedings in court.
What Is Collaborative Divorce?
Collaborative divorce (or collaborative law) is a legal process where each spouse retains an attorney and signs an agreement to work together to resolve divorce-related issues without going to court. Collaborative divorce is a mix between traditional divorce (because you involve attorneys) and divorce mediation (where the goal is for the spouses to agree and create an agreement without the judge.)
Are There Advantages to Collaborative Divorce?
Yes. In a traditional divorce, the couple will ask a judge to decide child custody and visitation disputes, calculate child and spousal support, and determine how to divide marital property. The collaborative divorce process gives the couple the power to decide how they will handle their divorce-related issues, without asking a judge to step in.
The collaborative divorce process is also:
- significantly less expensive than litigation (trial)
- more private than filing public documents, such as custody motions, in court
- less time-consuming than a traditional divorce, because the couple can usually reach an agreement on essential issues in a reasonable amount of time, and
- less stressful because both spouses agree in advance to work through the problems in face-to-face meetings without mud-slinging.
The Participation Agreement
Before beginning the collaborative divorce process, both spouses must sign a formal participation agreement to settle all divorce matters outside of court. Both parties will have attorneys who specialize in the collaborative law process and will only represent individuals who are willing to sign this type of agreement.
All participants agree in advance that if the couple’s communication breaks down during the process, and they can't reach an agreement, the collaborative law attorneys will withdraw from the case. The couple will need to start fresh with new lawyers and move the case to family court.
Typically, the participation agreement requires everyone to agree that:
- each spouse will work in good faith to negotiate a settlement outside of court
- neither spouse forced the other to participate in the collaborative divorce process
- each party will share freely any information necessary to reach a complete agreement, and
- if experts are required to help resolve lingering issues, both parties must agree on the neutral expert they choose.
The Collaborative Divorce Process
Agree to Negotiate. The first step in the collaborative divorce process is for the couple to have a conversation and agree to negotiate and participate in the process. If either party is against using alternative dispute resolution, the collaborative method won't work.
Hire an Attorney. The next step is for each party to hire a collaborative divorce attorney. When you select an attorney, it’s important to make sure the attorney has experience with alternative dispute resolution and is willing to participate in the collaborative law process. An experienced collaborative divorce attorney is well-versed in how to turn a divorce into a win-win settlement for both parties. While most traditional divorce attorneys are open to settling the divorce outside of court, if necessary, they are also not opposed to bringing the unresolved issues to the judge.
Full Disclosure. After you hire an experienced attorney, you’ll need to meet and discuss your goals and proposed resolutions. In order to reach a fair settlement, it’s critical that both spouses fully disclose all information about their assets and debts. If either party isn’t willing to provide the other with complete financial information, collaborative divorce will not work. If you think your spouse is being dishonest or hiding substantial assets, the collaborative process may not be right for you and you might have to involve the courts to obtain financial information.
Explain What You Want. You should be prepared to explain the following:
- how you would like to divide your marital assets and debts
- whether you own any separate property
- how you prefer to handle child custody and visitation
- who will pay child support for your minor children, and
- whether either spouse will pay the other alimony.
The Four-Way Meeting. You, your spouse, and both of your attorneys will schedule a series of four-way meetings to begin the negotiation process for your divorce. It’s critical that both spouses enter these meetings with an open mind and willing to negotiate. If at any time, either spouse is uncomfortable with the conference, that spouse can ask the attorney to stop the process to reevaluate the next steps.
Resolve Your Issues. During the four-way meetings, you should be prepared to discuss child custody, visitation, child support, property and debt division, and spousal support.
Draft an Agreement. When both parties agree on all divorce-related matters, your attorneys will draft a legal document to submit to the court for review and approval. In most cases, you and your spouse can sign the agreement and will not go through a lengthy court hearing. Some states require parties to appear for a short hearing to confirm their contract, but this shouldn’t take long and will be non-adversarial.
What Happens If We Can’t Agree?
Sometimes couples with the best intentions can’t settle their divorce without the court’s help.
If you can’t reach an agreement, your divorce lawyers will withdraw from your case, and each spouse will need to hire new lawyers to begin the process for traditional divorce. Hiring a new attorney, who will have to get up to speed on your case can be extremely expensive, so make sure to speak to your spouse in advance and confirm that you're both truly committed to resolving your issues outside of court.
If it's obvious you and your spouse are far apart on some of your bigger divorce-related issues and/or you have a lot of conflict and can't communicate very well, then collaborative divorce may not be right for you. You may want to speak to a local collaborative attorney to find out if this process is a good fit for your case.